Court Rules to Protect Teacher Who Protected Kids with Disabilities

Published on November 9, 2009 by Jennifer Laviano


One of the more controversial posts I’ve written is this one, encouraging public school teachers and service providers to speak out against violations of the civil rights of children with disabilities when they see it.

Of course, I didn’t think it was controversial when I wrote it; I thought it was common sense.

My goal was to let educators know that they, too, have rights, including the right to be free from retaliation if they are honest with parents and colleagues about what those children need.  It was, and is, my belief that the vast majority of special educators genuinely care about kids with special needs, and that they feel intimidated, coerced, and generally pressured to “tow the party line” and either side with the administration openly, or stay silent when they see the IDEA, Section 504, and the ADA being violated.

I caught a lot of flack for that piece, both “on the record” and off, by those who were offended by it.

I received emails and other communications from public school employees (interestingly, mostly special education administrators) who expressed shock, dismay and outrage I could even suggest such a thing.  Not surprisingly, the most violent reactions tended to come from those most likely to violate the IDEA, who vehemently denied not just participating in any such conduct, but also having ever witnessed anything like it ever in decades of service.

Right.  Because all of the teachers I’ve met over the years who’ve told me horrible stories about pressure they receive to misrepresent how a child is doing were just making it all up.

School district employees who work with children with disabilities face these tough choices every day.

Well, last week I returned from a family vacation to learn that an excellent Decision just was issued on October 23rd by the United States Court of Appeals for the Ninth Circuit.  As a reminder, the US Courts of Appeal are those federal courts just below the United States Supreme Court, so their rulings are extremely important and of strong precedential value.  In Barker v. Riverside County Office of Education, the Ninth Circuit held that Ms. Barker, a veteran special education teacher, had standing to sue under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for being retaliated against by her school district employer.


What did Ms. Barker do to invoke the wrath of her bosses?

She filed a Complaint with the United States Department of Education’s Office for Civil Rights (OCR) because she felt that the special education students in her charge were being denied free and appropriate public educations by the school district.  In response, she was intimidated, excluded from staff meetings and email communications, assigned jobs farther away, and was denied work opportunities and benefits.

The conditions became so extreme that Ms. Barker was forced to leave her job entirely.

The school district’s legal argument for consideration by the Court was, basically, that Mrs. Barker did not have “standing” to sue under these statutes because she, herself, is not disabled.

In finding in her favor, the Ninth Circuit wrote as follows:

‘While Congress could have limited the remedial provisions of the Rehabilitation Act to claims brought by or on behalf of disabled individuals, it did not do so in apparent recognition of the fact that disabled individuals may need assistance in vindicating their rights…’  Weber 212 F. 3d at 49.  Indeed, empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.”

I love that language:  “empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.”

How very true.  If you are one of those “empathetic people,” or you know one…perhaps you want to share this important Ruling with them today.  You may never know how many children you might help by doing so, but I assure you, it will be worth the effort if you help even one.

6 Responses to Court Rules to Protect Teacher Who Protected Kids with Disabilities

  1. Diane Willcutts
    November 9th, 2009 | 10:29 pm

    This is such a common problem that, when I described a similar situation to Tom Badway (now retired from the CT Bureau of Special Education) he not only finished the story for me but he LAUGHED. “Oh, the teacher must have gotten in trouble.”

    District retaliation against teachers who speak up for children is frighteningly common. Teachers need to know that retaliation is illegal and that there is support for them among those of us who work on behalf of children.

    Thanks for this post.


  2. Anonomous Special Education Teacher
    August 31st, 2012 | 3:31 pm

    I am sorry about replying anonymously but I do fear losing my job if I reply to this. In our school district we are pressured to use interventions that don’t work (but because they are “cutting edge” the school system looks good). We are also pressured to give our students less time than is appropriate so the system can increase caseloads, thereby saving money fewer teachers are needed. I am thinking about starting my own blog because so many of my colleagues are frustrated and need to share ideas. We feel so sorry for our students. Many students leave school precipitously because they are either illiterate or barely literate. But teachers can’t complain because they will be forced out of their jobs.

  3. Jennifer Laviano
    August 31st, 2012 | 3:47 pm

    THANK YOU for posting this! I am told this type of thing “off the record” by so many teachers. It breaks my heart and outrages me. I assure you, were you to start such a blog I would spread the word far and wide. This dirty little secret about education must be revealed. Thank goodness there are courageous teachers like you who realize it’s wrong. Thanks for reading, and even more for posting.

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    May 29th, 2014 | 9:22 pm

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